American Ambulance

National Labor Relations Board - Board Decisions

Mar 31, 1981

255 N.L.R.B. 417 (N.L.R.B. 1981)

AMERICAN AMBULANCE 417
Care Ambulance, Inc. and Care Ambulance, Inc.
d/b/a American Ambulance and Medical Trans-
portation Workers Association. Case 36-CA-
3517
March 31, 1981
DECISION AND ORDER
On September 2, 1980, Administrative Law
Judge Gerald A. Wacknov issued the attached De-
cision in this proceeding. Thereafter, the General
Counsel and Respondent filed exceptions and sup-
porting briefs, and Respondent filed a brief in op-
position to the exceptions of the General Counsel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings, and conclusions of the Administrative Law
Judge and to adopt his recommended Order, as
modified herein.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that the Respondent,
Care Ambulance, Inc. and Care Ambulance, Inc.
d/b/a American Ambulance, Portland, Oregon,
i In his Decision, the Administrative Law Judge concluded, inter ali.
that Respondent had violated Sec. 8(aX5) and (1) of the Act by engaging
in direct dealing with its employees concerning reimbursement of tuition
fees for an Emergency Medical Training (EMT) course which certain of
its employees were to take. As a result of this unfair labor practice, one
of the employees who was schedule to take the course did not do so.
The Administrative Law Judge recommended that Respondent be or-
dered to pay that employee at the rate of pay he would be earning had
he taken and passed the course. Additionally, the Administrative Law
Judge recommended that Respondent make that employee whole for
wages he would have received had he passed the course along with the
other employees. Without offering an alternative remedy. Respondent
argues that the Administrative Law Judge's remedy is too speculative
since it assumes that the employee would have finished the course, passed
the final examination, become certified as an EMT IV by passing the
state examination, and remained employed by Respondent.
We have carefully considered Respondent's assertions and have studied
possible alternative remedies. However, as Respondent concedes, the
wrongdoer must bear the burden of uncertainty in these situations, and
we can find no remedy other than that proposed by the Administrative
Law Judge which adequately compensates the employee without placing
upon him, rather than Respondent, the burden of uncertainty. For exam-
ple, one alternative remedy would be to allow the employee to take the
course with reimbursement by Respondent, and, in the event the employ-
ee passes both the course and the state examination, require Respondent
to pay the employee retroactively what he would have received had he
taken the earlier course and become an EMT IV along with the other
employees. The defect in this remedy is that, should the employee now
be unable to take the EMT IV course or be no longer in Respondent's
employ, he would receive no compensation whatsoever. Such an out-
come is clearly unacceptable. Accordingly, we find no satisfactory
remedy other than that proposed by the Administrative Law Judge.
Although we thus adopt the remedy recommended by the Administra-
tive Law Judge, we note that pay at the EMT IV level for the employee
who dropped the EMT IV course due to his inability to pay ill cease if
the employee refuses to take the EMT course or fails either the course or
the state examination.
255 NLRB No. 64
and Vancouver, Washington, its officers, agents,
successors, and assigns, shall take the action set
forth in the said recommended Order, as so modi-
fied.
1. In paragraphs 2(g) and (h) all reference to
"Region 36" should be changed to "Region 19."
2. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
The Act gives employees the following rights:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through repre-
sentatives of their own choice
To engage in activities together for the
purpose of collective bargaining or other
mutual aid or protection
To refrain from the exercise of any or all
such activities.
WE WILL NOT unilaterally change any terms
and conditions of employment which you en-
joyed before selecting Medical Transportation
Workers Association as your collective-bar-
gaining representative.
WE WILL NOT bypass your collective-bar-
gaining representative by engaging in direct
negotiations with you regarding Emergency
Medical Training (EMT) tuition fees.
WE WILL NOT in any like or related manner
refuse to bargain collectively with the Union,
or interfere with, restrain, or coerce our em-
ployees in the exercise of their rights guaran-
teed in Section 7 of the National Labor Rela-
tions Act.
WE WILL, upon request by the Union, rein-
state our former practice of paying ambulance
personnel double time for overtime night
work.
WE WILL, upon request by the Union, rein-
state our former sick leave policy, and our
former payroll periods and paydays.
WE WILL reimburse employees, with inter-
est, for the expenses incurred in being required
A M E R IC A N A M B U L A N C E 417~~~~~~~~~~~-
418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to pay a portion of the September 22, 1979,
EMT course and for any consequential mone-
tary damages incurred as a result of their
having to withdraw from the course.
WE WILL reimburse employees, with inter-
est, for the loss of overtime pay incurred as a
result of the change in the payment of over-
time night pay at the double time rate; and WE
WILL reimburse any employees, with interest,
who may have been denied sick leave with
pay as a result of the change in sick leave
policy.
WE WILL bargain with the Union, upon re-
quest, regarding all of the above and other
matters, as the collective-bargaining repre-
sentative of employees in the following de-
scribed unit:
All employees employed by us at our Port-
land, Oregon, and Vancouver, Washington,
metropolitan area facilities including drivers,
dispatchers, maintenance employees and
emergency medical technicians, but exclud-
ing office clerical employees, confidential
employees, sales employees, guards, shift su-
pervisors and other supervisors as defined in
the Act.
CARE AMBULANCE, INC. AND CARE
AMBULANCE, INC. D/B/A AMERICAN
AMBULANCE
DECISION
STATEMENT OF THE CASE
GERALD A. WACKNOV, Administrative Law Judge:
Pursuant to notice a hearing with respect to this matter
was held before me in Portland, Oregon, on March 4,
1980. The original charge was filed on September 11,
1979' by Medical Transportation Workers Association
(herein called the Union), and was amended on October
30. On October 31, the Regional Director for Region 36
of the National Labor Relations Board (herein called the
Board) issued a complaint and notice of hearing alleging
a violation by Care Ambulance, Inc. and Care Ambu-
lance, Inc. d/b/a American Ambulance (herein called
Respondent), of Section 8(a)(1), (3), and (5) of the Na-
tional Labor Relations Act, as amended (herein called
the Act). Respondent's answer to the complaint, duly
filed, denies the commission of any unfair labor prac-
tices. 2
The parties were afforded a full opportunity to be
heard, to call, examine, and cross-examine witnesses, and
to introduce relevant evidence. Since the close of the
hearing, briefs have been received from the General
Counsel and counsel for the Respondent.
I All dates or time periods herein are within 1979 unless stated to he
otherwise.
' The complaint was further amended at the hearing
Upon the entire record and based upon my observa-
tion of the witnesses and consideration of the briefs sub-
mitted, I make the following:
FINDINGS OF FACT
1. JURISDICTION
Respondent is a corporation with its principal place of
business located in Portland, Oregon, and is engaged in
the business of providing ambulance and related services
in Portland, Oregon, and Vancouver, Washington. In the
course and conduct of its business operations Respondent
annually purchases and causes to be transferred and de-
livered to its Oregon facilities goods and materials
valued in excess of $50,000 which are transported to said
Oregon facilities directly from States other than the State
of Oregon.
It is admitted, and I find, that Respondent is, and has
been at all times material herein, an employer engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act.
II. THE LABOR ORGANIZATION INVOLVED
It is admitted, and I find, that the Union is a labor or-
ganization within the meaning of Section 2(5) of the Act.
IIll. THE UNFAIR LABOR PRACTICES
A. Issues
The principal issues raised by the pleadings are wheth-
er Respondent has violated Section 8(a)(1), (3), and (5) of
the Act by changing various terms and conditions of em-
ployment subsequent to the time its employees selected
the Union as their collective-bargaining representative.
B. The Facts
On July 2, the Union filed an election petition with the
Board in Case 36-RC-4210, and on August 23, following
a representation election conducted on August 15, the
Union was certified as the exclusive bargaining repre-
sentative of the following unit of employees:
All employees employed by the Employer at its
Portland, Oregon and Vancouver, Washington met-
ropolitan area facilities including drivers, dispatch-
ers, maintenance employees and emergency medical
technicians, but excluding office clerical employees,
confidential employees, sales employees, guards,
shift supervisors and other supervisors as defined in
the Act.
On August 20, Respondent's owner and executive di-
rector, Donald Adler, caused notices to be posted advis-
ing "ambulance personnel" of a reduction in overtime
night pay from double time to time and a half, and advis-
ing all employees of a change in Respondent's payroll
periods from every 2 weeks to twice each month, result-
ing in different paydays.3
A separate but related notice was posted. stating that "Due to cir-
cumstances beyond our control, payday will he delayed this week until
Continued
AMERICAN AMBULANCE 419
Thereupon, on the same date, the Union's representa-
tive, John Bailey, phoned Adler and advised him that the
aforementioned changes were subject to collective bar-
gaining. Adler replied that Respondent was experiencing
a financial crisis and had insufficient funds to meet the
next payroll, and that he intended to implement the
changes. Bailey protested, and a meeting was set up for
August 22 to discuss the matters. On August 21, Adler
forwarded a letter to Bailey confirming that Adler had
previously advised Bailey that Respondent was having
"some financial problems." Attached to the letter was a
handwritten list of "Deposits" and "Checks" for the
prior 4-1/2 months, showing that the checks written by
Respondent totaled some $41,000 more than deposits
during the same period.
The August 22 meeting was held as scheduled, and the
two individuals essentially reiterated their respective po-
sitions. Bailey also stated that he was not there for the
purpose of then engaging in negotiations. Adler stated
that he wanted to meet with the Union's negotiating
committee the following day in order to attempt to con-
vince the employees that the changes were necessary,
and solicited Bailey's assistance in this regard. Bailey
stated that he had been hired by the Union to negotiate
in furtherance of the Union's interests and had no inten-
tion of attempting to assist Adler in this effort. Bailey
further advised Adler that he would not be available for
the purpose of negotiating for a period of 7 days, and
suggested that during the interim he should contact em-
ployee Tom Brokaw, president of the Union. 4
Adler testified that, in addition to making the afore-
mentioned changes in the overtime pay rate and the pay-
roll periods, he laid off one person in the office, took
himself off the payroll, and pursued other cost-saving
measures. Adler further testified that the savings to Re-
spondent from the reduction in overtime pay amounted
to roughly $600 per month.
Gary Daniels, who became Respondent's general man-
ager in mid-June, testified that, for about a month or a
month and a half prior to August 30, Respondent had
been experiencing what Daniels regarded as a very high
rate of absenteeism and, in an attempt to deal with the
problem, he reviewed each employee's absentee record
for the calendar year to date. Thereupon, on August 30,
four employees, namely Bob Crothers, Lynne Jones,
Diane Bash and Tom Brokaw, the Union's president,
were handed written warnings for excessive absenteeism,
each notice advising the employee of the number of days
he or she had been absent, ranging from 12 to 9 days,
during the past 8 months commencing January 1. Addi-
tionally, the memos contained the following paragraphs:
Missed days create not only a financial problem
to the Company in overtime, but puts additional
burdens on your fellow workers as well. When you
Friday, afternoon, August 24," and suggesting that if necessary, employ-
ees could contact Respondent for an advance. However, there is no com-
plaint allegation that this matter is violative of the Act.
4 However, it appears that, since the Union's negotiating committee
was not to be elected until September 7, meaningful negotiations could
not commence prior to that date. By letter dated September 7. Bailey ad-
vised Adler that negotiations could commence after September 12. and
again protested the unilateral changes.
fail to report for work, someone must work extra
hours to take your place or the car must be shut
down and the remaining cars have to run some of
your calls in addition to their own.
Every time you are absent lowers your value as
an employee and reduces your paycheck. Please
keep this in mind.
Brokaw and Jones testified that they had received no
prior complaints or warnings regarding absenteeism, nor
to their knowledge had other employees received such
warnings. Further, it was stipulated at the hearing that
employees Crothers and Bash would testify similarly.
The record indicates that no written warnings were
issued by Respondent between the dates of August 4,
1976, and May 24, 1979. On May 24, an employee re-
ceived a warning for reporting late to work; on June 11
an employee was advised in writing that a particular
form was required to be executed before "third riders"
are allowed in ambulances (although this notice is not
couched in terms of a warning); and on July 6, an ambu-
lance driver was issued a written notice advising him of
his removal from this position for a period of I year,
with a resultant reduction in pay, due to an accident
which was apparently attributable to the employee.
Further, subsequent to the election, Respondent issued
a written warning, dated October 3, to two employees
for unauthorized use of a company credit card in the
amount of $6.75; on October 11, Respondent verbally
reprimanded a dispatcher for "losing a car," that is, not
knowing the whereabouts of a particular vehicle, and
documented this reprimand by a written memo; by
memo dated January 10, 1980, Respondent advised an
employee of his suspension without pay for two consecu-
tive 48-hour shifts, as a result of failing to complete a
shift as instructed; and on February 20, 1980, Tom
Brokaw received a written warning for consistently fail-
ing to get certain forms signed by ambulance passengers
or their representatives.
Prior to September 1, dispatchers were not required to
punch in and out on the timeclock. Rather, their work
schedules were prepared on a monthly basis and dis-
patchers were expected to adhere to a posted schedule
which merely indicated the shift on which they were to
work and apparently whether they were expected to
work overtime. If dispatchers' actual hours of work devi-
ated from the posted schedule for any reason, they were
instructed to so advise Robert Kurtz, assistant general
manager, who would make notations, sometimes on the
posted schedule itself and sometimes elsewhere, in order
to compute the employees' correct pay. This procedure
was changed on September 1, and thereafter the dis-
patchers were required to punch the timeclock5 each
day when they came to work at the beginning of the
shift, and when they left work at the end of the shift.
According to Kurtz, this new method was instituted in
order to facilitate more accurate recordkeeping and to
minimize complaints from dispatchers that they were not
receiving the correct overtime pay. Moreover, Kurtz be-
The timeclock had been previously installed and had theretofore
been used for other purposes not relevant herein.
AMERICAN AMBULANCE
420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
lieved that compiling the payroll from the monthly
schedule did not satisfy applicable Federal wage and
hour laws.
Both Respondent and the employees derive benefit
from Emergency Medical Training (EMT) courses in
which the employees enroll and which enable them to
gain expertise in increasingly advanced areas of emergen-
cy medical procedures. These courses are offered by a
variety of schools, hospitals, and other institutions, and
result in certification for particular types of emergency
care which, apparently upon passing an examination, the
employee is thereafter able to administer. The certifica-
tions progress from EMT I through EMT IV, and the
employee's compensation increases in accordance with
the level of proficiency, reflected by the certification,
each employee has obtained. Moreover, Respondent's
billing rate also reflects the nature of the emergency
treatment provided, and thus Respondent is equally inter-
ested in its employees receiving more advanced EMT
certifications.
The record shows that seven employees had been au-
thorized by Respondent to enroll in an EMT IV course
offered by Providence Hospital in September. On Sep-
tember 22, the morning of one of the class sessions,6 the
seven employees were summoned to Respondent's prem-
ises prior to attending class. Adler summarily announced
to the assembled employees that Respondent would no
longer pay their tuition, and asked how they proposed to
pay for the course. The employees replied that they had
assumed Respondent was going to continue paying the
tuition in accordance with past practice. Adler stated
that this would no longer be the case, and expressed his
belief that, if the employees were required to assume the
costs, this would give them more incentive to pass the
course. Moreover, Adler alluded to Respondent's finan-
cial inability to pay for the classes. The employees re-
plied that they were unable to pay the $300 tuition for
this particular course, and agreed among themselves that
they could not or would not take the class. Adler coun-
tered with the suggestion that Respondent would pay
half the amount, with the remainder being paid by the
employees at the rate of $100 per month deducted from
their checks. The employees replied that they could not
afford this, and one employee left the room stating that
he was financially unable to pay for any portion of the
class.? The remaining employees, after further discussion
with Adler, agreed to pay for half the tuition, to be de-
ducted from their paychecks apparently at the rate of
$25 per paycheck.
About a week later, the employees enrolled in the
course were required to sign the following letter which
apparently embodies the understanding reached at the
September 22 meeting:
6 There is some confusion in the record, however, regarding certain
salient facts. Thus, the exhibit introduced in the record reflects that the
class commenced on September 27 rather than September 22. One em-
ployee who was enrolled in the class, Roberta Hansen, testified that the
class was a combination EMT III and IV class, and that the entire EMT
III portion and one EMT IV session had been completed prior to Sep-
tember 22, the date the alleged unilateral change, discussed below, was
announced. However, another employee, Tom Brokaw, testified that the
class commenced on September 22.
7 This employee is currently employed as an EMT Ill.
Care Ambulance has decided to pay 50% of your
training in the current Providence EMT 4 Class.
The total fee of S300.00 will be paid and you will
pay back $150.00 by payroll deduction. These de-
ductions will be in the amount of $25.00 per pay
check.
If you do not pass the final test or if you fail to
complete the class, you will pay back the entire
$300.00. If your employment with Care Ambulance
ceases prior to the end of the class, for whatever
reason, you will pay back the entire $300.00.
I agree to the above conditions.
Employee
Date
The record indicates that the employees who were en-
rolled in this course had also been enrolled in prior
courses, and on each occasion the entire cost of the
courses had been borne by Respondent. Thus, Brokaw
testified that on four prior occasions Respondent had
paid the entire amount; Hansen testified that she had
taken "other classes" paid for by Respondent; and Kelley
testified that Respondent paid the entire amounts of both
of his EMT II and III courses. Moreover, Kelley testi-
fied that during his employment interview in October
1977, he was told by Adler that he would be required to
take such courses, and that the costs would be paid by
Respondent. Kelly further explained that this was one of
the primary reasons he accepted the position. Hansen tes-
tified that when presented with the aforementioned letter
by General Manager Daniels, she asked what would
happen if she didn't sign it. Daniels, according to
Hansen, replied she would probably lose her job. Daniels
testified, however, that he may have told Hansen that if
she did not sign she probably wouldn't be going to class.
On January 7, 1980, Respondent posted the following
notice:
One of the company benefits at Care is being
paid when you are sick and unable to work, up to
six days per calendar year.
Recently our bookkeeping procedures have been
somewhat sloppy and we have not adhered strictly
to the policy of these days for sick pay accruing at
one sick day for each two months of service. In
other words, we give you eligibility for one sick
day as of January 1; on March I you could be eligi-
ble for up to two sick days; May I up to three days,
etc. With the new year, we are going to correct this
situation.
We will also retain the right to require proof of
illness, in the form of a physician's certificate, in
order for you to be paid for a day you are ill.
Some of you are aware that we are presently ne-
gotiating with the Medical Transportation Workers
union to pay "well" days, or in other words, pay
you for any of the sick days you have not been paid
for during the year. I hope that this will come
about, and for this reason, I urge you to use your
sick days wisely.
AMERICAN AMBULANCE 421
Adler testified that, at an employee meeting in June, it
became apparent that the employees did not understand
Respondent's sick leave policy. Adler told the employees
that they accrued 6 days per year of paid sick leave, ap-
parently after 90 days of employment, but did not ex-
plain the method of computation. Up to that point, sick
leave had not been a problem, but shortly thereafter, ac-
cording to Adler, employees "took advantage of it after
I explained it to them" and were given paid sick leave
before they had earned it. Thus, Respondent felt com-
pelled to set forth its sick leave policy more specifically
in the January 7, 1980, memo. According to General
Manager Daniels, a policy of computing sick leave based
on 6 days of sick leave per year accruing after a 90-day
initial period was adhered to in "some instances" as a
result of misinterpretation of the policy by the bookkeep-
er, but this was not the general policy. No witnesses
called by the General Counsel testified regarding the
aforementioned meeting in June, or presented their un-
derstanding of the sick leave policy.
The parties have been negotiating regarding the terms
of an initial collective-bargaining agreement, and have
met on eight occasions prior to the hearing herein, be-
tween the dates of October 5, 1979, and February 29,
1980. Tentative agreement has been reached on a variety
of contract items. However, it does not appear that
agreement has been reached on the items which are the
subject of the alleged unilateral changes herein, except
for agreement upon bimonthly pay periods and a disci-
pline and discharge provision which permits Respondent
to issue written reprimands.
C. Analysis and Conclusions
Respondent concedes that its bargaining obligation
commenced on August 15, 1979, the date of the repre-
sentation election, and continued thereafter. N.L.R.B. v.
Benne Katz, et al., d/b/a Williamsburg Steel Products Co.,
369 U.S. 736 (1962); Laney & Duke Storage Warehouse
Co., Inc., et al., 151 NLRB 248, 266-267 (1965), enfd. 369
F.2d 859 (5th Cir. 1966); Lawrence Textile Shrinking Co.,
Inc., 235 NLRB 1178 (1978).
Respondent's contention that it was privileged to make
unilateral changes in its payroll periods, paydays, and
overtime rates for certain personnel as a matter of urgent
economic necessity," deemed to be a "crisis situation" by
Adler, does not withstand scrutiny. Thus, Adler admitted
that, upon speaking with Bailey on August 20, he had
initially decided to postpone these changes until Septem-
ber 1, which admission provides irrefutable evidence that
the changes were not immediately necessary. Moreover,
had the implementation of these changes been postponed
until September 1, any savings to Respondent as a result
of the reduction of wages would not have been manifest-
ed until September 25. 9 Thus, it appears that no emer-
gency situation existed which necessitated such unilateral
8 See N.LR.B. v. Benne Katz. supra, wherein the Supreme Court
stated that "there might be circumstances which the Board could or
should accept as excusing or justifying unilateral actions." See also
Kroehler Mfg. Co., 222 NLRB 1269 (1976).
9 The first payday following September I. according to the notice
posted by Adler, would be on September 25, reflecting a payroll period
of September 1-15.
changes in wages on August 20, the effective date of
such changes, and that ample time for bargaining, prior
to the implementation of such changes, existed.
Nor am I persuaded that reducing the night overtime
rate of ambulance personnel from double time to time
and a half would have any significant impact on Re-
spondent's total payroll. Thus, Adler estimated that the
savings to Respondent would amount to about $600 per
month, whereas the record shows the total monthly pay-
roll, excluding managements wages, to exceed $60,000.
Additionally, Respondent has not shown that this rela-
tively insignificant $600-per-month efficiency measure
could not have been effectuated by reducing the salaries
of other nonunit personnel or by some other method
which would not affect unit employees. While the record
summarily shows that Respondent may have engaged in
other cost-saving measures, there is no evidence or even
a contention by Respondent that it was compelled to
reduce the overtime rate of unit employees after exhaust-
ing all other reasonable avenues of reducing costs. Fur-
ther, Respondent has not demonstrated that changing its
payroll periods and paydays would alleviate the purport-
ed financial crisis, nor did Respondent adduce evidence
to show that such changes, if necessary at the time to
manage a "cash flow" problem, could not have been in-
stituted as a stop-gap expediency rather than as a perma-
nent change.
I therefore find that Respondent was not compelled by
economic necessity to make the aforementioned changes,
and under the circumstances it was not incumbent upon
the Union to abandon the normal approach to collective
bargaining and commence bargaining on an emergency
piecemeal basis as Respondent desired. Kroehler Mfg.
Co., supra. I conclude that by such unilateral conduct
Respondent violated Section 8(a)(5) of the Act, as al-
leged.
The record is clear and Respondent admits that it
"generally" paid for the entire amount of the EMT
course fees in which its employees were enrolled. Seven
employees had been enrolled in the September course,
and it appears that none of these employees had been re-
quired to pay any part of the tuition or fee for prior
EMT courses in which they had been enrolled. There is
no doubt that, at the time the employees became enrolled
in the course, they believed, based on past practice, that
Respondent would pay the entire amount. Indeed, Adler
seems to have acknowledged this on September 22, as he
advised the employees of his decision to, in effect, dis-
continue Respondent's policy in this regard for reasons
of cost and as an incentive to the employees.
The record evidence discloses that, since April 1978,
there have been 7 EMT courses, variously denoted as
EMT I through EMT IV and that, except for the EMT
IV course involved herein, the Employer paid the entire
cost of such courses for 29 out of 35 employees.
10 Six employees were enrolled in an EMT ili course in January 1979,
and Respondent paid the entire $350 fee for each of the employees. Five
employees were enrolled in an EMT II1 course in February 1979, and Re-
spondent paid the entire cost for three of the employees, but two employ-
ees paid the entire cost themselves. Four employees were enrolled in an
EMT Ill and IV course on August 17. 1979. and Respondent paid $250
Continued
AMERICAN AMBULANCE 21
422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The record shows that Respondent had established a
general policy of paying the total amount of employees'
EMT course fees. However, this policy was not absolute,
and on occasion Respondent would, in effect, negotiate
with certain employees regarding the matter. Indeed, this
appears to have been the case, so far as the record exhib-
it shows, regarding an EMT III and IV course on
August 17, 1979, subsequent to the election, where the
$500 cost of the course was split, each of the four em-
ployees paying $250.1' While the record therefore estab-
lishes a deviation from the general policy, it is clear that
Respondent, on September 22, engaged in direct negotia-
tions with certain of its employees regarding the EMT
course in question herein, subsequent to the time the em-
ployees had been enrolled in the course. Respondent,
however, was at that time obligated to bargain regarding
this matter with the Union, rather than with a group of
employees who represented neither the Union nor the
other unit employees not involved in the courses.
N.L.R.B. v. Jones & Laughlin Steel Corporation, 301 U.S.
1 (1978). Thus, by dealing directly with the employees
and thereby bypassing their exclusive bargaining repre-
sentative, Respondent has violated Section 8(a)(5) of the
Act.12 Medo Photo Supply Corporation v. N.L.R.B., 321
U.S. 678 (1944); Courtesy Volkswagen, Inc., 200 NLRB 84
(1972); Mosher Steel Company, 220 NLRB 336 (1975).
The record demonstrates that at no time prior to the
January 7, 1980, memo were any employees ever specifi-
cally advised, either verbally or in writing, that they ac-
crued sick leave at the rate of I day of sick leave for
each 2 months of service. While Respondent's supervi-
sors admit that Respondent has not "strictly" adhered to
this policy due to misinterpretation of the policy by the
bookkeeper, there is no record evidence, other than these
self-serving generalizations, that such a policy was ever
enforced. It is therefore clear that the announcement of
the sick leave policy on January 7, 1980, constituted a
substantial if not total departure from actual past prac-
tice, and that prior to January 7 the policy enunciated by
Respondent was honored, if at all, more in the breach
than in practice. Thus, I conclude that Respondent's an-
nouncement and apparent application of the new rule
subsequent to January 7, 1980, constituted a unilateral
change violative of Section 8(aX5) of the Act.
Between the dates of October 3, 1979, and February
20, 1980, Respondent issued four warning notices to var-
ious individuals for specific rule infractions. The General
Counsel maintains that the aforementioned warning no-
tices are a clear departure from Respondent's established
of the $500 cost for each employee. Other courses which were fully or
partially paid for by the employees were not denoted as EMT courses.
'' There is no complaint allegation that Respondent violated the Act
by causing employees to partially pay for the August 17 EMT course,
and it would appear that any agreement between Respondent and the
four employees regarding the payment of such tuition fees must have
been reached prior to August 15, the date of the election. The record
contains no further evidence regarding this matter.
12 Although the complaint allegation is couched in terms of "unilateral
change," the material facts herein are not in dispute and, in my estima-
tion, the matter has been fully litigated. Therefore I deem it appropriate,
and not prejudicial to Respondent, to base my finding upon the alternate
theory herein. See C & E Stores. Inc. C & E Supervalue Division, 221
NLRB 1321, fn. 3 (1976); Red Barn System. Inc., 224 NLRB 1586 (1976).
practice, 3 and therefore constitute a unilateral change
violative of Section 8(aX)(5) of the Act. I do not agree.
The record shows that written warnings, although infre-
quent, had been utilized by Respondent as a disciplinary
measure immediately prior to the advent of the Union.
Moreover, the nature of the written warnings issued be-
tween October 3, 1979, and February 20, 1980, are not
unlike those issued prior to the election, and denote spe-
cific instances of rule infractions the nature of which, on
their face, would appear to justify Respondent's determi-
nation to maintain file memoranda of such infractions.
Further, the General Counsel does not appear to contend
that the warnings were unjustified, and the fact that
more written warnings were issued subsequent to the
election would appear to coincide with the appointment
of Gary Daniels as general manager, who elected to con-
tinue the warning notice system of discipline which had
been utilized prior to the election herein. Under the cir-
cumstances, I find the record insufficient to sustain the
complaint allegation that Respondent unilaterally institut-
ed a written disciplinary warning system in violation of
Section 8(a)(5) of the Act. Cf. Amoco Chemicals Corpora-
tion, 211 NLRB 618, 622-623 (1974).
Regarding the warning notices for absenteeism, the
record stands unrebutted that Respondent was experienc-
ing what it regarded as an inordinate amount of absen-
teeism, and that the four employees in question had the
poorest attendance records among all unit employees.
Evidence adduced by Respondent shows that the attend-
ance problem became particularly apparent in July and
August, and the General Counsel did not present evi-
dence to show that the attendance of the four employees
receiving such notices was, at that time, either satisfac-
tory or no worse than other employees. Therefore, I
conclude that the recored is insufficient to demonstrate
that the warning notices were discriminatorily motivated.
Further, as found above, Respondent's use of warning
notices does not appear to constitute a unilateral change
in its disciplinary procedure following the election
herein. I shall therefore dismiss both the 8(a)(3) and (5)
allegations pertaining to the issuance of the instant warn-
ing notices for absenteeism.
The testimony of Respondent's witness is unrebutted
that the new timeclock policy was instituted primarily
for the purpose of insuring that employees would receive
the correct pay, and was largely instituted in response to
complaints by employees that they were not receiving
pay for overtime they had worked. Respondent attribut-
ed this error to inaccurate recordkeeping on the part of
Assistant General Manager Kurtz as a result of his use of
a monthly dispatch schedule and notes to himself which
he sometimes inadvertently overlooked when causing the
payroll to be prepared. There was no testimony that
punching the timeclock would reflect adversely upon the
employees, or have a deleterious effect upon their estab-
lished working conditions, as the timeclock would
merely reflect what employees were required to report
either verbally or on the monthly dispatch schedule. I
13 Apparently, the General Counsel would contend that verbal warn-
ings, rather than written warnings, should have been given for the var-
ious infractions.
AMERICAN AMBULANCE 423
therefore find that the evidence is insufficient to show
that Respondent's determination to require dispatchers to
punch a timeclock was violative of Section 8(a)(5) and
(I) of the Act. Rust Craft Broadcasting of New York, Inc.,
225 NLRB 327 (1976); Bureau of National Affairs, Inc.,
235 NLRB 8 (1978); Wabash Transformer Corp., Subsidi-
ary of Wabash Magnetics, Inc., 215 NLRB 546 (1974).
The complaint alleges and the General Counsel con-
tends that each of the complaint allegations discussed
above also constitute conduct violative of Section
8(aX3), as well as of Section 8(a)(5), of the Act. The
record contains no independent evidence of union
animus by Respondent and Respondent's witnesses spe-
cifically denied that the conduct herein was undertaken
in retaliation for any union activity. I am unable to con-
clude that the unfair labor practices herein, either singly
or collectively, are sufficient in and of themselves to
warrant the determination that Respondent's conduct
was discriminatorily motivated. Moreover, such a finding
would not materially affect the remedy herein. I shall
therefore dismiss each of the 8(a)(3) complaint allega-
tions. Capitol Trucking, Inc., 246 NLRB 135 (1979); Ap-
palachian Power Company, John E. Amos Plant, 250
NLRB 228 (1980).
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. Respondent has violated Section 8(a)(5) and (1) of
the Act by unilaterally changing its payroll periods, pay-
days, and overtime rates for unit employees; by negotiat-
ing directly with the employees regarding the method of
payment for EMT courses, thereby bypassing the Union
as the collective-bargaining representative of Respond-
ent's employees; and by unilaterally changing its sick
leave policy.
4. Except as found above, Respondent has not engaged
in other unfair labor practices as alleged.
THE REMEDY
Having found that Respondent violated Section 8(a)(5)
and (1) of the Act by unilaterally abrogating or changing
certain employment benefits enjoyed by employees, and
by bypassing the Union and dealing directly with its em-
ployees regarding tuition fees for EMT courses, I shall
recommend that it cease and desist therefrom and that it
take certain affirmative action to effectuate the policies
of the Act. Such affirmative action shall include rein-
statement of certain employment benefits, reimbursement
to employees for their loss of overtime pay, with inter-
est, for EMT tuition expenses they incurred, with inter-
est, and for their loss of pay, if any, as a result of being
denied paid sick leave in accordance with Respondent's
established policy, also with interest. I shall also recom-
mend that Respondent cease and desist from engaging in
any like or related conduct, and post an appropriate
notice.
Moreover, as the record shows that one unidentified
employee dropped out of the September 22 EMT IV
course as a result of inability to pay, it shall also be rec-
ommended that Respondent commence paying him the
amount he would be earning had he taken and passed the
course, and that Respondent make him whole, retroac-
tively and with interest, for the wages he would have re-
ceived had he passed the course along with the other
employees. Whether this particular employee would
have passed the EMT IV course, thereby becoming enti-
tled to a wage increase, is entirely speculative. However,
the burden of this uncertainty must fairly rest with the
wrongdoer rather than the victim. See Viele & Sons, Inc.,
227 NLRB 1940, 1950 (1977); The Lima Lumber Compa-
ny, 176 NLRB 696 (1969), enfd. 437 F.2d 455 (6th Cir.
1971).
Based upon the foregoing findings of fact, conclusions
of law, and the entire record herein, and pursuant to
Section 10(c) of the Act, I hereby issue the following
recommended:
ORDER 4
The Respondent, Care Ambulance, Inc. and Care Am-
bulance, Inc. d/b/a American Ambulance, Portland,
Oregon, and Vancouver, Washington, its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain with Medical Transportation
Workers Association as the certified representative of
employees in the appropriate unit, by unilaterally making
changes in employees terms and conditions of employ-
ment without affording the Union a sufficient opportuni-
ty to bargain about such changes, and by dealing directly
with unit employees and thereby bypassing the Union as
the employees' exclusive collective-bargaining repre-
sentative. The appropriate unit is:
All employees employed by the Employer at its
Portland, Oregon and Vancouver, Washington met-
ropolitan area facilities including drivers, dispatch-
ers, maintenance employees and emergency medical
technicians, but excluding office clerical employees,
confidential employees, sales employees, guards,
shift supervisors and other supervisors as defined in
the Act.
(b) In any like or related manner refusing to bargain
with or interfering with, restraining, or coercing employ-
ees in the exercise of the rights guaranteed by Section 7
of the Act.
2. Take the following affirmative action which is nec-
essary to effectuate the policies of the Act:
(a) Upon request, restore the status quo ante regarding
overtime pay, payroll periods and paydays, sick leave
policy, and the practice of paying for the entire amount
of employees' EMT tuition fees, and bargain with the
Union concerning all proposed changes in terms and
1" In the event no exceptions are filed as provided by Sec. 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided
in Sec. 102.48 of the Rules and Regulations. be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
AMERICAN MBULANCE
424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
conditions of employment of the employees in the appro-
priate unit.
(b) Reimburse employees, with interest, for the loss of
overtime pay incurred as a result of Respondent's unilat-
eral discontinuance of overtime night pay at the double
time rate.
(c) Reimburse employees, with interest, for the tuition
expenses incurred as a result of being required to partial-
ly pay for the September 22 EMT IV course.
(d) Make whole the employee, retroactively and with
interest, who dropped out of the aforementioned EMT
IV course as a result of financial inability to pay, and
commence paying him the amount he would be earning
had he taken and passed the course.
(e) Reimburse any employees, with interest, who may
have been denied sick leave with pay as a result of the
change in the sick leave policy.
(f) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other re-
cords necessary to analyze the amount of backpay due
under the terms of this Order.
(g) Post at Portland, Oregon, and Vancouver, Wash-
ington, facilities copies of the attached notice marked
"Appendix."15 Copies of said notice, on forms provided
by the Regional Director for Region 36, after being duly
signed by an authorized representative of Respondent,
shall be posted by Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by Respondent to insure that
said notices are not altered, defaced, or covered by any
other material.
(h) Notify the Regional Director for Region 36, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
15 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing and
Order of the National Labor Relations Board."